- Q. If a worker is eligible for workers' comp, does this mean he automatically has a "disability" for purposes of the Americans with Disabilities Act (ADA)?
- A. No. Many injuries that qualify for worker's comp are not serious
enough to make someone "disabled" for purposes of filing an ADA
claim. Injured workers are "disabled" under the ADA only if their injury
makes them "substantially limited in a major life activity" such as working,
walking or breathing.
However, the ADA also covers workers whose company perceives them as
disabled. Therefore, even if a worker isn't injured seriously enough to be
"disabled", he might still be covered if his employer discriminates against
him because of his impairment, such as by refusing to let him come back to
work.
- Q. Can a job applicant be asked if he has filed workers' comp claims in the past?
- A. No. However, after a company has made a job offer, it can ask for
limited information about past on-the-job injuries, so long as it has a
legitimate need for the information and asks the same questions of all new
employees in similar jobs.
- Q. Can a worker sue under the ADA if he is fired from taking leave after filing a comp claim?
- A. Maybe. The worker would have to show that he is "disabled" and that being
given short-term leave would be a "reasonable accommodation".
- Q. Can a company give a medical exam to a worker who files a comp claim?
- A. Yes. A company can require a medical exam or ask questions about an
on-the-job injury to find out what benefits the worker should get or
determine if he is healthy enough to return to work.
However, if a company asks for more information than it needs to process a
comp claim, or forces a worker to her many exams or repeatedly answer the
same questions, this may be "disability-based harassment" under the ADA.
- Q. Can a company refuse to hire because the applicant has filed comp claims in the past, or because hiring this applicant will result in higher comp costs?
- A. No. However, a company can refuse to hire people who are so likely to
injure themselves that they pose a "direct threat" to the workplace.
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Hot Sites
The New York State Consumer Protection Board (www.consumer.state.ny.us) has
a downloadable consumer complaint form.
The Consumer Information Catalog (www.pueblo.gsa.gov) has
over 253 publications from 40 governmental agencies.
Kenneth Vercammen Esq. of New Jersey (www.njlaws.com) has
consumer, estate planning and personal injury information.
Senior citizens, their families, attorneys, social workers and financial
planners can access information about elder law, Medicare, Medicaid, estate
planning, trusts and rights of the elderly and disabled at the Senior
Law home page (www.seniorlaw.com).
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What's New in Debtor/Creditor Law?
The Fair Debt Collection Practices Act: The following two
decisions are contrary to decisions reported in Volume 1, No. 3 of the Legal
Survival Newsletter. Debt collectors who collect bad checks written by
consumers for goods or services intended for household or personal use, are
covered by the Fair Debt Collections Practices Act (Federal Trade Commission
Staff Interpretation). Debt collectors who communicate with Louisiana debtors
must be properly licensed by the state. An unlicensed collector who attempts
to collect a debt is threatening to take action it cannot legally take in
violation of the FDCPA (U.S. District Court for the Middle District of
Louisiana). For further information, order "Highlights of the Fair Debt
Collection Practices Act" pamphlet.
Creditors may write directly to bankruptcy debtors seeking
reaffirmation agreements if the letters do not contain a threat of immediate
action by the creditor and are non-coercive (U.S. Circuit Court of Appeals
Sevenths Circuit).
Even though a note provided for attorneys fees, a bank
cannot collect them from a guarantor because the guarantee referred only to
collection of "charges and costs" upon default (Loudoun County Circuit
Court, Virginia)
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What's New in Divorce/Family Law?
Workers' comp. divided at divorce. A workers' compensation award
can be divided at divorce even though part of it was intended to compensate
the husband for future lost wages after the divorce. The award constitutes
"marital property" because the claim accrued during the marriage of the
parties (Illinois Supreme Court).
Civil suits for domestic violence. Victims of domestic
violence are instituting civil actions in the following situations:
- Assault or battery by a present or former spouse or partner.
- The abuser recklessly or intentionally caused the partner or someone else (child, parent or other relative) to suffer emotional distress.
- The abuser has confined or falsely imprisoned the partner against his or her will.
- The survivors of the victim have a case against the abuser for wrongful death.
- The abuser has raped the victim.
- The abuser has stalked the spouse or partner resulting in intrusion on seclusion, trespass, tortious interference with the contractual relations and infliction of emotional distress.
- The victim is subjected to the intentional sexual transmission of a disease or condition such as herpes or HIV.
- The abuser has taken, sold or destroyed the partner's property without permission.
- The abuser seeks to financially isolate the spouse or partner by interfering with his or her job, bank accounts, investments or other finances.
- Employers may be held liable for an injury suffered by an employee at the hands of a domestic partner who enters the office or factory.
State and federal law have been used as a grounds for these
lawsuits. The law varies from state-to-state. The Federal "Violence
Against Women Act", is being used to bring civil rights suits against the
other spouse by victims of sexual harassment at work, rape, child sex abuse,
stalking and "gay-bashing" attacks. Under the act, the victim can recover
unlimited compensatory and punitive damages and attorneys fees.
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What's New in Estate Planning Law?
Sister sues brother for interfering with her inheritance. A
sister who lost her inheritance because of her brother's actions can sue for
interference with an inheritance where she cannot obtain adequate relief from
the will contest. The sister sued her brother for talking their mother into
making a new will and leaving him the bulk of her estate (Indiana Court of
Appeals).
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What's New in Health Law?
Health care fraud. The Kennedy-Cassaubaum Act establishes a
new felony relating to health care fraud. It will now be unlawful for any
person who knowingly and willfully executes or attempts to execute a "scheme
or devise" to defraud any health care benefit program or to obtain any of
the money or property owned by or under the custody or control of any health
care benefit program in connection with the delivery of or payment for health
care benefits or services. Also, one of the new violations includes a claim
for reimbursement based on a service code that the person knows or "should
know" will result in a greater payment than the code "the person knows or
should know" is applicable to the item or service actually provided. This
provision also makes it unlawful to submit Medicare or Medicaid claims for a
pattern of medical or other items or services that a person knows or should
know are not medically necessary. Another new offense concerns
"remuneration" offered or paid to beneficiaries in order to influence a
person to order or receive from a particular provider or practitioner an
item or service covered by Medicare or Medicaid. The penalty applies only to
the provider, not the beneficiary, although a beneficiary who accepts illegal
remuneration arguably could be charged as an accessory. "Remuneration"
includes waiving deductibles and co-payments in some circumstances.
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What's New in Landlord/Tenant Law?
Insurance covers housing discrimination. Liability insurance
will cover a real estate management company which was sued under the Fair
Housing Act. The policy covered "bodily injury", which was defined as
including "mental anguish or mental injury". The court ruled that the racial
discrimination caused emotional distress and was not an "intentional act"
excluded by the policy (U.S. Court of Appeals, Seventh Circuit).
Lead paint covered by liability insurance. Most courts have
held that the "pollution exclusion" bars coverage of lead paint injury
lawsuits by tenants against landlords. However, the U.S. Court of Appeals for
the Second Circuit held that an apartment complex which was sued after a
child ingested lead paint is covered by its business liability policy
despite an exclusion for "the discharge, dispersal, seepage, migration,
release or escape of pollutants". This court also held that a similar policy
covered a landlord against a lawsuit by a tenant who suffered carbon monoxide
poisoning and as a result of a defective heating system. A painting
contractor who was sued after a child ingested lead paint is covered under a
standard business liability policy even though the policy contained a
"pollution exclusion". The court held that this exclusion was limited to
environmental pollution (New Hampshire Supreme Court). Maryland and
Massachusetts have had similar decisions.
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What's New in Personal Injury Law?
Workers' comp for secondhand smoke. Employees in New York,
California, Florida, Kansas, Massachusetts, New Mexico and Wisconsin have
qualified for workers' comp for lung cancer, emphysema, asthma and chronic
bronchitis caused by secondhand smoke. Awards have been made in the following
situations: Flight attendants for bronchial conditions, pleurisy and
allergies from exposure to passengers smoking. A waiter suffered a heart
attack after working in a smoky bar. A hospital worker died of lung
cancer. Office worker hospitalized for severe asthma attack and lung
infection. Prison workers breathing problems exacerbated. Engineer with
allergy to tobacco smoke collapsed after being transferred to an office where
half the employees smoked. Budget analysis developed multiple chemical
sensitivity from exposure to pipe tobacco. City officer worker treated for
bronchial asthma aggravated by working in a poorly-ventilated office. Accountant
fired for absenteeism due to ailments. The Action on Smoking and Health has an
outline of the medical studies and reports that have addressed the health
risks of secondhand smoke. Call 202-659-4310 or visit http://www.ash.org.
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What's New in Real Estate Law?
Vacationers get squatter's rights. Adverse possession claims
(squatters rights) are obtained where there is clear and convincing evidence
that the claimant actually used the land like an owner for at least ten
years. The claimants actually occupied a cottage for only one month a year
for vacations. The cottage was on a small piece of land that was part of a
once-booming vacation resort. The parcel had clearly defined borders. All
surrounding properties had become barren and vandalized. However, the
claimants' property retained utilities, was posted and was boarded-up against
vandalism except during the vacation month for ten years. The New York Court
of Appeals ruled that the exercise of adverse ownership need be not more
than as appropriate to the character of the particular property. For further
information, see "Don't Loose Your Property to a Squatter" in "The Upstart
Small Business Legal Guide" by Robert Friedman.
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What's New in Small Business Law?
Online capital access. Small business owners indicated at
the 1995 White House Conference on Small Business that access to capital was
among their top concerns. The Angel Capital Electronic Network (ACE-NET) was
designed by the U.S. Small Business Administration's office of advocacy to
provide a link between private investors and small companies looking for
$250,000 to $5 million in investment capital. ACE-NET acts solely as a
listing service for small corporate stock offerings. It is not a matching
services and does not act as an advisor, broker or dealer of securities. The
network operators plan to develop videos and educational materials aimed at
helping small businesses become more investment-savvy. Information can be
found at the SBA's website (www.sba.org).
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Injured Victims' Rights
The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:
- To communicate with you in plain language that is easy to understand.
- To promptly return your telephone calls.
- To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
- To have your case personally handled by an attorney.
- To keep you informed of the progress of your case at all times.
- To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
- To not handle your case in an "assembly line" fashion.
- To accommodate the needs of you and your family during the handling of your case.
- To vigorously protect your legal rights.
- To never release your name to the media after your case has been completed, except with your written permission.
Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the Western New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.
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